Friday 26 December 2008

EU procurement: Equal treatment, non-discrimination and transparency

Cavalier or corrupt contracting authorities are a menace to the public purse, taxpayer value and competitive businesses.

Is the European Community (European Union) concerned with public procurement only above certain threshold levels?

For those interested in good public governance and value for money, it is a relief to know that some common principles apply to all public contracts within the European Economic Area (EEA).


Article 2 principles

Article 2 of the Procurement Directive 2004/18/EC reminds us of three principles, which apply to public procurement, namely equal treatment, non-discrimination and transparency:

Article 2
Principles of awarding contracts

Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.


Recital 2

Recital 2 of the Procurement Directive 2004/18/EC, also known as the Classic Directive, explains that the provisions of the Treaty establishing the European Community (TEC) apply to all public procurement contracts. However, above certain threshold levels more detailed harmonised EC (EU) secondary legislation kicks in:

(2) The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.


Treaty provisions

Here we look briefly at some of the main treaty provisions, which apply to public procurement contracts. (More detail can be found, in the light of the Lisbon Treaty, in previous blog posts on individual Articles.)


Article 2 TEC Common market

Article 2 of the Treaty establishing the European Community (TEC) states:

The Community shall have as its task, by establishing a common market…

The common market is the original concept enshrined in the Treaty of Rome (EEC Treaty). Since the Single European Act (SEA) it has gradually been replaced by the term internal market in the treaty and secondary legislation. (The Commission seems to favour the single market.) The Treaty of Lisbon would replace the common market by the internal market throughout.


Article 3 TEC Community activities

Article 3 TEC sets out Community activities based on the objectives (tasks) mentioned in the previous Article. At least the following are relevant to the common market (internal market) and consequently to public procurement:

Article 3 TEC (parts)

1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:

(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;

(b) a common commercial policy;

(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;

(d) measures concerning the entry and movement of persons as provided for in Title IV;


(g) a system ensuring that competition in the internal market is not distorted;

(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;



Four freedoms

The four market freedoms – free movement of goods, persons, services and capital – meet the material scope of the Procurement Directive, which concerns the execution of works (buildings and civil engineering works), the supply of products (goods) and the provision of services.

The ECJ has given the fundamental treaty principles concrete meaning based on the specific treaty provisions.


Free movement of goods

TEC Articles 23 to 31 contain the main principles regarding the free movement of goods.

Article 28 TEC prohibits all restrictions on imports an all measures having equivalent effect between member states.


Free movement of services

The free movement of services is set out in Articles 49 to 55 TEC.

Article 49 TEC prohibits restrictions on the freedom to provide services in another member state.


Right of establishment

Restrictions on the freedom of establishment of nationals of a member state in another member state are prohibited according to Article 43 TEC (to Article 48 TEC).


Free movement for workers

Articles 39 to 42 TEC aim at securing the free movement for workers within the Community.



The four freedoms can be seen as expressions of a principle of equal treatment of all economic actors and persons within the internal market.

Equality comprises both (active) equal treatment and (passive) absence of discrimination.

Normally, acts in breach of the specific market freedoms also constitute discrimination on grounds of nationality, but in any case the fundamental prohibition against discrimination on grounds of nationality stands as a reminder to contracting authorities and as an anchor for economic operators from other member states:

Article 12 TEC

Within the scope of application of this Treaty, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.

The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules
designed to prohibit such discrimination.


Interpretative Communication

If a public contract falls within the scope of the Procurement Directive 2004/18/EC, the detailed rules apply to the award procedure above the thresholds.

The Commission has offered guidance on public procurement procedures in cases where the specific rules of the Directives do not apply:

Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives (OJ 1.8.2006 C 179/2).

The Interpretative Communication refers to the EU-wide competitive tendering procedures set up in the Procurement Directive 2004/18/EC and the Utilities Directive 2004/17/EC, but refers to two kinds of contracts that are not or only partially covered by the Directives:

— Contracts below the thresholds for application of the Public Procurement Directives;

— Contracts for services listed in Annex II B to Directive 2004/18/EC and in Annex XVII B to Directive 2004/17/EC that exceed the thresholds for application of these Directives.

(Concessions are a third such category, mentioned in footnote 3 on the first page.)


Obligation of transparency

After summarizing the EC Treaty rules and the basic standards for the award of contracts, the Communication reminds the contracting entities (authorities) of the obligation to evaluate if an intended contract might potentially be of interest to economic operators located in other member states.

The Commission proceeds to deal with adequate advertising:

According to the ECJ, the principles of equal treatment and of non-discrimination imply an obligation of transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the market to be opened up to competition.

The obligation of transparency requires that an undertaking located in another Member State has access to appropriate information regarding the contract before it is awarded, so that, if it so wishes, it would be in a position to express its interest in obtaining that contract.

Ralf Grahn

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